In The Supreme Court of the United States

Transcription

1 No ================================================================ In The Supreme Court of the United States PANAGIS VARTELAS, v. ERIC H. HOLDER, JR., Attorney General, Petitioner, Respondent On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit BRIEF OF PETITIONER STEPHANOS BIBAS Counsel of Record JAMES A. FELDMAN NANCY BREGSTEIN GORDON AMY WAX UNIVERSITY OF PENNSYLVANIA LAW SCHOOL SUPREME COURT CLINIC 3400 Chestnut Street Philadelphia, PA (215) Counsel for Petitioner Panagis Vartelas ANDREW K. CHOW NEIL A. WEINRIB & ASSOCIATES 305 Broadway, Suite 1002 New York, NY (212) STEPHEN B. KINNAIRD RISHI N. SHARMA MATTHEW T. CROSSMAN MICHAEL R. MILLER PAUL HASTINGS LLP th Street N.W. Washington, DC (202) ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) OR CALL COLLECT (402)

2 i QUESTION PRESENTED Is 8 U.S.C. 1101(a)(13)(C)(v), which has been interpreted as depriving certain lawful permanent residents of their right to take brief trips abroad without being denied reentry, impermissibly retroactive as applied to lawful permanent residents who pleaded guilty before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)?

3 ii TABLE OF CONTENTS Page Question Presented... i Table of Contents... ii Table of Authorities... v Opinions Below... 1 Jurisdiction... 1 Statutory Provisions Involved... 1 Introduction and Statement of the Case... 2 I. Statutory Background... 4 A. The Immigration and Nationality Act of 1952 (INA)... 4 B. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)... 6 II. Facts and Procedural History... 8 Summary of Argument Argument I. IIRIRA Contains No Clear Statement Mandating Retroactive Application of INA 101(a)(13)(C)(v) II. If Applied to Offenses Occurring Before Its Enactment, INA 101(a)(13)(C)(v) Would Have a Retroactive Effect A. Applying IIRIRA to Lawful Permanent Residents Like Mr. Vartelas Would Have a Retroactive Effect... 22

4 iii TABLE OF CONTENTS Continued Page B. Applying IIRIRA to Lawful Permanent Residents Like Mr. Vartelas Would Change Their Substantive Rights C. The Disability and Penalty Imposed by IIRIRA Are Based on Pre-IIRIRA Conduct, Not Post-IIRIRA Travel III. IIRIRA Is Impermissibly Retroactive Regardless of Reliance, But Reliance by Those Who Pleaded Guilty Under Pre- IIRIRA Law Establishes an Especially Obvious and Severe Retroactive Effect A. Reliance on Pre-Existing Law Is Not Necessary for a New Law to Have a Retroactive Effect B. In Any Event, Applying IIRIRA Retroactively Would Upset Lawful Permanent Residents Reasonable Reliance on the Fleuti Doctrine in Pleading Guilty Lawful Permanent Residents Reasonably Relied upon the Fleuti Doctrine in Deciding Whether to Plead Guilty The Court of Appeals Erred in Dismissing Lawful Permanent Residents Reliance Interests... 45

5 iv TABLE OF CONTENTS Continued Page IV. Any Lingering Ambiguities Should Be Construed in Favor of the Lawful Permanent Resident Conclusion Statutory Appendix: Former INA 101(a)(13), 8 U.S.C. 1101(a)(13) (1994), as in effect before App. 1 Current INA 101(a)(13)(A), (C), 8 U.S.C. 1101(a)(13)(A), (C) (as amended by IIRIRA 301(a), effective Apr. 1, 1997)... App. 2 Current INA 212(a)(2)(A)-(D), 8 U.S.C. 1182(a)(2)(A)-(D)... App. 3 Former INA 212(c), 8 U.S.C. 1182(c) (1994), as in effect before 1996 (repealed by IIRIRA 304(b))... App. 8

6 v TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey, 530 U.S. 466 (2000) Beazell v. Ohio, 269 U.S. 167 (1925) Bryan v. United States, 524 U.S. 184 (1998) Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1994)... 12, 49 Chew Heong v. United States, 112 U.S. 536 (1884)... 18, 42 In re Collado-Munoz, 21 I. & N. Dec (BIA 1998)... 7 Collins v. Youngblood, 497 U.S. 37 (1990)... 22, 26, 29 Costello v. INS, 376 U.S. 120 (1964)... 24, 52 In re E N, 7 I. & N. Dec. 153 (BIA 1956) E. Enters. v. Apfel, 524 U.S. 498 (1998) Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006)... 6 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)... 35, 39 Fong Haw Tam v. Phelan, 333 U.S. 6 (1948)... 26, 33, 52 Fong Yue Ting v. United States, 149 U.S. 698 (1893)... 24

7 vi TABLE OF AUTHORITIES Continued Page Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997)... passim INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)... 49, 52 INS v. Errico, 385 U.S. 214 (1966) INS v. St. Cyr, 533 U.S. 289 (2001)... passim Itzcovitz v. Selective Serv. Local Bd. No. 6, 447 F.2d 888 (2d Cir. 1971) Jordan v. De George, 341 U.S. 223 (1951) Jubilado v. United States, 819 F.2d 210 (9th Cir. 1987) Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990) Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir. 1979) Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)... 5 Landgraf v. USI Film Products, 511 U.S. 244 (1994)... passim Landon v. Plasencia, 459 U.S. 21 (1982)... 5, 26 Lindh v. Murphy, 521 U.S. 320 (1997)... 19, 28 Lynce v. Mathis, 519 U.S. 433 (1997)... 24, 32 Martin v. Hadix, 527 U.S. 343 (1999)... 30, 32 Michel v. INS, 206 F.3d 253 (2d Cir. 2000)... 6

8 vii TABLE OF AUTHORITIES Continued Page Miller v. Florida, 482 U.S. 423 (1987)... 22, 23 Ng Fung Ho v. White, 259 U.S. 276 (1922) Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004)... passim Padilla v. Kentucky, 130 S. Ct (2010)... 24, 41, 42, 44 Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007)... 6 In re Rivens, 25 I. & N. Dec. 623 (BIA 2011)... passim Rosenberg v. Fleuti, 374 U.S. 449 (1963)... passim Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286 (E.D.N.Y. 2000)... 6 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)... 4 Soc y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756 (Story, Circuit Justice, C.C.D.N.H. 1814) (No. 13,156)... passim United States v. Heth, 7 U.S. (3 Cranch) 399 (1806) In re Vartelas, A , 2008 WL (BIA May 1, 2008) In re Vartelas, A , 2009 WL (BIA Jan. 23, 2009)... 1, 12

9 viii TABLE OF AUTHORITIES Continued Page Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2010)... passim Wala v. Mukasey, 511 F.3d 102 (2d Cir. 2007)... 6 Weaver v. Graham, 450 U.S. 24 (1981)... passim CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. CONST. art. I, 9, cl U.S. CONST. art. I, 10, cl U.S. CONST. amend. V U.S. CONST. amend. XIV Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No , Div. C, 110 Stat , 6 IIRIRA 301(a)... 2, 7 IIRIRA , 33 IIRIRA 309(a)... 8 IIRIRA 321(a) IIRIRA 321(b) IIRIRA IIRIRA IIRIRA IIRIRA IIRIRA IIRIRA IIRIRA

10 ix TABLE OF AUTHORITIES Continued Page Immigration and Nationality Act of 1952 (INA), Pub. L. No , 66 Stat. 163 (codified as amended at 8 U.S.C et seq.)... 4 INA 101, 8 U.S.C INA 101(a), 8 U.S.C. 1101(a) INA 101(a)(13), 8 U.S.C. 1101(a)(13)... passim INA 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A)... 1, 7 INA 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C)... 7, 49 INA 101(a)(13)(C)(i), 8 U.S.C. 1101(a)(13)(C)(i) INA 101(a)(13)(C)(ii), 8 U.S.C. 1101(a)(13)(C)(ii) INA 101(a)(13)(C)(iii), 8 U.S.C. 1101(a)(13)(C)(iii) INA 101(a)(13)(C)(iv), 8 U.S.C. 1101(a)(13)(C)(iv) INA 101(a)(13)(C)(v), 8 U.S.C. 1101(a)(13)(C)(v)... passim INA 101(a)(13)(C)(vi), 8 U.S.C. 1101(a)(13)(C)(vi) INA 101(a)(13), 8 U.S.C. 1101(a)(13) (1994)... 4 INA 101(a)(43), 8 U.S.C. 1101(a)(43)... 20

11 x TABLE OF AUTHORITIES Continued Page INA 101, 8 U.S.C (1994)... 6 INA 212, 8 U.S.C INA 212(a), 8 U.S.C. 1182(a)... 7 INA 212(a)(2), 8 U.S.C. 1182(a)(2)... 2, 48, 49, 50 INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I)... passim INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i)... 5, 50 INA 212(a)(2)(A)(ii), 8 U.S.C. 1182(a)(2)(A)(ii) INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II) INA 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B) INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i) INA 212(a)(2)(C)(ii), 8 U.S.C. 1182(a)(2)(C)(ii) INA 212(a)(2)(D), 8 U.S.C. 1182(a)(2)(D) INA 212(h), 8 U.S.C. 1182(h) INA 212(a), 8 U.S.C. 1182(a) (1994)... 5 INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i) (1994)... 5

12 xi TABLE OF AUTHORITIES Continued Page INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I) (1994)... 6 INA 212(c), 8 U.S.C. 1182(c) (1994)... passim INA 235(b), 8 U.S.C. 1225(b) (1994) INA 237(a), 8 U.S.C. 1227(a)... 7 INA 240, 8 U.S.C. 1229a... 7 INA 240(a)(2)(A)(i)(I), 8 U.S.C. 1251(a)(2)(A)(i)(I) (1994)... 6 INA 240A, 8 U.S.C. 1229b... 8 INA 240A(a), 8 U.S.C. 1229b(a)... 20, 21 INA 240A(c)(6), 8 U.S.C. 1229b(c)(6) INA 241(a), 8 U.S.C. 1251(a) (1994)... 5 INA 241(a)(2)(A)(i), 8 U.S.C. 1251(a)(2)(A)(i) (1994)... 5 INA 241(a)(2)(A)(ii), 8 U.S.C. 1251(a)(2)(A)(ii) (1994) U.S.C U.S.C. 1254(1)... 1 OTHER AUTHORITIES 1 WILLIAM BLACKSTONE, COMMENTARIES BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, (last visited Nov. 11, 2011)... 47

13 xii TABLE OF AUTHORITIES Continued Page Nancy Morawetz, The Invisible Border: Restrictions on Short-Term Travel by Noncitizens, 21 GEO. IMMIGR. L.J. 201 (2007) James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 VA. L. REV. 359 (2010) Statement of the President on Signing Budget and Immigration Bill, 1996 WL (Sept. 30, 1996) Transcript of Oral Argument, Judulang v. Holder, No (U.S. Oct. 12, 2011) U.S. SENTENCING GUIDELINES MANUAL 3E1.1(a) (1994)... 9 U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (1994)... 10

14 1 OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-28) is reported at 620 F.3d 108. The decision of the Board of Immigration Appeals (BIA) (Pet. App ) is unreported but available at 2009 WL (Jan. 23, 2009) JURISDICTION The court of appeals entered its judgment on September 9, 2010 and denied a timely petition for rehearing and rehearing en banc on January 4, 2011 (Pet. App. 33). The petition for a writ of certiorari was filed on April 4, 2011 and granted on September 27, This Court s jurisdiction is invoked under 28 U.S.C. 1254(1) STATUTORY PROVISIONS INVOLVED Reprinted in an appendix to this brief (App. 1-8) are the pertinent portions of: (a) former Immigration and Nationality Act (INA) 101(a)(13), 8 U.S.C. 1101(a)(13) (1994), as in effect before 1997 (App. 1); (b) current INA 101(a)(13)(A), (C), 8 U.S.C. 1101(a)(13)(A), (C), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No , Div. C,

15 2 301(a), 110 Stat (enacted Sept. 30, 1996, effective Apr. 1, 1997) (App. 2-3); (c) current INA 212(a)(2)(A)-(D), 8 U.S.C. 1182(a)(2)(A)-(D) (App. 3-7); and (d) former INA 212(c), 8 U.S.C. 1182(c) (1994), as in effect before 1996, when it was amended and later repealed effective April 1, 1997 by IIRIRA, Pub. L. No , 304(b), 110 Stat (App. 8) INTRODUCTION AND STATEMENT OF THE CASE In the early 1990s, petitioner played a small role in a counterfeiting scheme, pleaded guilty, and was sentenced to four months incarceration. Until 1997, lawful permanent residents had the right to take brief trips abroad without risk of being denied reentry upon their return. Thereafter, IIRIRA changed the law by adding INA 101(a)(13)(C)(v). That subsection provides that a lawful permanent resident who returns from a trip abroad shall not be regarded as seeking an admission unless he has committed an offense identified in [INA 212(a)(2), 8 U.S.C.] section 1182(a)(2). The BIA has interpreted that subsection as abridging certain lawful permanent residents right to travel abroad and return. Specifically, lawful permanent residents who have been convicted of certain types of offenses are now inadmissible upon their return from brief trips

16 3 abroad, regardless of whether they are deportable for those same offenses if they remain in this country. Even if this is the proper interpretation of 101(a)(13)(C)(v), Congress did not provide for that subsection to apply retroactively to lawful permanent residents who committed offenses before IIRIRA s effective date. First, this Court requires a clear statement from Congress that a statutory provision applies retroactively, and none is present here. Second, if applied to lawful permanent residents who committed offenses before its enactment, 101(a)(13)(C)(v) would retroactively impose a substantial new disability and penalty upon them for their pre-iirira offenses. They would have to surrender their pre-iirira right to travel abroad, on pain of being removed from this country upon their return. Imposing the disability of not being able to travel abroad, or the penalty of removal upon doing so, would disrupt their settled expectations. Applying 101(a)(13)(C)(v) retroactively would also undermine lawful permanent residents reasonable reliance, when deciding to plead guilty, on their pre-iirira right to travel. Particularly given the canon of construing lingering ambiguities in favor of the immigrant, 101(a)(13)(C)(v) cannot apply to conduct that predated IIRIRA.

17 4 I. STATUTORY BACKGROUND A. The Immigration and Nationality Act of 1952 (INA) The main statute governing immigration is the Immigration and Nationality Act of 1952 (INA), Pub. L. No , 66 Stat. 163 (codified as amended at 8 U.S.C et seq.). Until it was amended by IIRIRA, the key event that determined many persons immigration status was an entry. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (Mezei). The INA defined entry as any coming of an alien into the United States, from a foreign port or place. INA 101(a)(13), 8 U.S.C. 1101(a)(13) (1994). The INA definition also considered intent: it explicitly excepted from its scope a lawful permanent resident (colloquially, a green-card holder ) who showed that his departure to a foreign port or place... was not intended or reasonably to be expected by him. Id. Thus, not every return from a trip abroad amounted to an entry. In Rosenberg v. Fleuti, the government sought to deport a lawful permanent resident on the ground that he was excludable upon returning from a several-hour visit to Mexico. 374 U.S. 449, (1963) (Fleuti). This Court construe[d] the intent exception to 101(a)(13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien s permanent residence. Id. at 462. A lawful permanent resident s innocent, casual, and brief trip abroad,

18 5 this Court held, may not have been intended as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an entry into the country on his return. Id. The definition of entry mattered because those who were denied entry at the border faced exclusion hearings. In contrast, those who gained entry (or, under Fleuti, had not made a new entry) could be removed only through deportation hearings, which afforded greater due process safeguards. See, e.g., Landon v. Plasencia, 459 U.S. 21, (1982) (Plasencia); Mezei, 345 U.S. at 212; Kwong Hai Chew v. Colding, 344 U.S. 590, (1953). Furthermore, the grounds for deportation were narrower than the grounds for exclusion. Compare INA 241(a), 8 U.S.C. 1251(a) (1994), with INA 212(a), 8 U.S.C. 1182(a) (1994). For instance, an immigrant who had been convicted of or admitted to committing a crime involving moral turpitude was generally excludable. INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i) (1994). He was not deportable, however, unless he had been convicted of at least two such crimes, or one such crime with a prison sentence of a year or more within five years of entry. INA 241(a)(2)(A)(i), (ii), 8 U.S.C. 1251(a)(2)(A)(i), (ii) (1994). Thus, until IIRIRA, a lawful permanent resident who had been sentenced to and served less than one year in prison for committing just one crime involving moral turpitude was not deportable. Though he might become excludable if he sought entry after a long absence, he

19 6 could return from brief trips abroad without ever making an entry. Fleuti, 374 U.S. at 462. Crime involving moral turpitude is a term of art that the INA uses but nowhere defines. See, e.g., INA 101, 212(a)(2)(A)(i)(I), 240(a)(2)(A)(i)(I), 8 U.S.C. 1101, 1182(a)(2)(A)(i)(I), 1251(a)(2)(A)(i)(I) (1994). That category encompasses many offenses that are not necessarily serious but require a certain level of mens rea. It has been interpreted to include a wide range of offenses, including misdemeanors like stealing bus transfer passes and jumping subway turnstiles to avoid paying the fare. Michel v. INS, 206 F.3d 253, 256, (2d Cir. 2000) (Sotomayor, J.); Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286, 288 n.2 (E.D.N.Y. 2000). In contrast, the category has been interpreted to exclude at least some forms of burglary, statutory rape, and domestic violence. Wala v. Mukasey, 511 F.3d 102, (2d Cir. 2007) (Sotomayor, J.); Quintero-Salazar v. Keisler, 506 F.3d 688, 691, 694 (9th Cir. 2007); Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, (9th Cir. 2006). B. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) In 1996, Congress passed sweeping amendments to the INA in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No , Div. C, 110 Stat (codified as amended at 8 U.S.C et seq.). IIRIRA

20 7 substituted admission for entry as the key event determining many immigrants status. IIRIRA 301(a) (codified at INA 101(a)(13), 8 U.S.C. 1101(a)(13)). Immigrants ineligible for admission at a point of entry are now called inadmissible (not excludable ). INA 212(a), 8 U.S.C. 1182(a). Those who had been admitted but are not allowed to stay are still called deportable. INA 237(a), 8 U.S.C. 1227(a). Inadmissible and deportable immigrants are now collectively called removable and are subject to the same procedural mechanism: a removal proceeding. See INA 240, 8 U.S.C. 1229a. IIRIRA defines admission as the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. INA 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A). The government bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident should be treated as seeking an admission under INA 101(a)(13)(C). In re Rivens, 25 I. & N. Dec. 623, (BIA 2011). In 1998, the Board of Immigration Appeals (BIA) reviewed IIRIRA s new definition of admission and determined that the Fleuti defense does not survive the enactment of IIRIRA as a judicial doctrine. In re Collado-Munoz, 21 I. & N. Dec. 1061, (BIA 1998) (en banc). The BIA reasoned that because the new definition removed the word intended, it eliminated the intent exception on which Fleuti had relied. Id. at But see id. at 1075 (Rosenberg, Bd. Mem., dissenting) ( [T]he statute is utterly silent as

21 8 to the continued vitality of the Fleuti doctrine. ). This Court has never passed on whether the Fleuti doctrine survives IIRIRA, but petitioner assumes for the sake of argument that it does not. In another significant change, IIRIRA repealed INA 212(c), which had allowed lawful permanent residents to seek discretionary relief from exclusion or deportation. 8 U.S.C. 1182(c). IIRIRA replaced 212(c) with a narrower discretionary provision, called cancellation of removal, with generally stricter eligibility criteria. See IIRIRA 304 (codified as amended at INA 240A, 8 U.S.C. 1229b). In INS v. St. Cyr, this Court held that the repeal of 212(c) does not operate retroactively against lawful permanent residents who were eligible for 212(c) relief when they pleaded guilty. 533 U.S. 289, 326 (2001). Because IIRIRA made such sweeping changes, Congress delayed its effective date, providing that most of its provisions would take effect on April 1, See IIRIRA 309(a). II. FACTS AND PROCEDURAL HISTORY 1. Petitioner Panagis Vartelas, a native and citizen of Greece, has resided in the United States for more than three decades. See Administrative Record (AR) 281. He received a student visa at the end of 1979 and came to the United States to study at Queens College. See id. at 281, 293. He married a U.S. citizen in 1985 and became a lawful permanent resident in Id. at 185, 254, 281, 321. In the

22 9 early 1990s, Mr. Vartelas and his wife had two children, both of whom are U.S. citizens. 1 Id. at , 240, 254. He remains in close contact with them and continues to support them financially, working as a sales manager for a roofing company. Id. at , , , 254. He also helps his elderly parents with their family-run bed and breakfast in Greece, which on occasion requires him to travel there. See id. at , In 1992, Mr. Vartelas opened an auto body shop in Queens, New York. AR 186. One of his partners in the shop leased a photocopier to make counterfeit traveler s checks. Id. at , When his partner asked Mr. Vartelas for assistance, Mr. Vartelas helped him perforate the sheets into individual checks. Id. He neither sold the checks nor received any money from them. Id. at 188. In 1994, he pleaded guilty to conspiring to make or possess a counterfeit security, in violation of 18 U.S.C Id. at 309. The prosecutor agreed that Mr. Vartelas s guilty plea allocution would qualify him for a twolevel sentence reduction for acceptance of responsibility. Id. at ; U.S. SENTENCING GUIDELINES MANUAL 3E1.1(a) (1994). That two-level reduction subtracted four months from both the top and the bottom of the guideline range, reducing it to four to ten months imprisonment. See AR 312; U.S. 1 Mr. Vartelas and his first wife have divorced, and he has remarried another U.S. citizen, though those facts are not in the record.

23 10 SENTENCING GUIDELINES MANUAL ch. 5, pt. A (1994) (sentencing table). The sentencing judge sentenced him to four months incarceration followed by two years supervised release, a sentence at the bottom of the range. AR His conviction did not make him deportable. Years later, the immigration judge found that Mr. Vartelas was not a major actor in the crime. Id. at From January 22 to 29, 2003, Mr. Vartelas traveled to Greece to assist his parents with their family business. See AR Upon his return, an immigration officer questioned him about his 1994 conviction. Id. at 319. Mr. Vartelas explained that he was unaware that his 1994 conviction would impede his return to the United States. Id. at In March 2003, the government issued a notice to appear, placing Mr. Vartelas in removal proceedings. The government claimed that he was inadmissible under INA 212(a)(2)(A)(i)(I) upon his return to this country because he had been convicted of a crime involving moral turpitude in AR Mr. Vartelas appeared before an immigration judge at a series of hearings, but his initial attorney failed to appear twice and failed to submit 2 Mr. Vartelas had previously made other trips to Greece in the years following his conviction and the enactment of IIRIRA. See, e.g., AR , 222. He had never encountered any difficulties reentering this country and had never been told that he was seeking an admission or was inadmissible, though these facts are not in the record.

24 11 a requested brief. Id. at At a 2005 hearing, his attorney indicated that he would challenge IIRIRA s retroactive application to Mr. Vartelas s pre-iirira offense. Id. at But at the next hearing, he conceded that Mr. Vartelas was removable on the ground that he was inadmissible when he returned to the United States. Id. at 155, ; see INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I). His attorney did not question whether Fleuti had been superseded, whether Mr. Vartelas s brief trip qualified for the Fleuti doctrine, or whether IIRIRA s definition of seeking an admission in 101(a)(13)(C)(v) could apply retroactively based on the pre-iirira conviction. AR 155. Instead, he requested discretionary relief from removal under former 212(c) of the INA. Id. at , 156. In 2006, the immigration judge denied that request. AR 116. The judge expressed doubt, however, about whether the attorney was correct to concede removability: The crime, while one of moral turpitude[,] may not have been an excludable offense when he committed it, but he clearly has conceded removability. Id. The BIA affirmed, discussing only the factors relating to discretionary relief under former 212(c). Id. at 51, A , 2008 WL (BIA May 1, 2008) (unpublished). 5. Represented by new counsel, Mr. Vartelas filed a timely motion to reopen and remand his case on the ground that his prior counsel had been ineffective for, among other reasons, conceding his removability. AR The motion requested permission to

25 12 withdraw that concession on the ground that INA 101(a)(13), as amended by IIRIRA, cannot apply retroactively to his pre-iirira guilty plea. Id. at The BIA denied the motion. It noted that the immigration judge had found that [previous counsel] had been derelict in his duty. Pet. App. 31. Nevertheless, the BIA held that Mr. Vartelas had not proven prejudice because his argument against applying 101(a)(13) retroactively [wa]s misplaced. Id. The court of appeals denied Mr. Vartelas s timely petition for review of the BIA s decision. Pet. App. 28. The court first rejected his argument that the counterfeiting conviction was a petty offense that did not make him removable. Pet. App It then reviewed the retroactivity holding de novo, first explaining that the BIA s statutory interpretation deserved no Chevron deference because retroactivity neither implicates the BIA s expertise nor involves a congressional delegation of power to the BIA to fill a statutory silence. Pet. App. 20. To determine whether Congress intended amended INA 101(a)(13) to apply retroactively, the court applied the two-step test set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994). First, the court asked whether Congress has expressly prescribed the statute s proper reach. Id. at 280. The government conceded, and the court agreed, that Congress has not expressly prescribed the temporal reach of 101(a)(13). Pet. App

26 13 Because there is no explicit command, the court went on to decide Landgraf s second step, namely whether applying the statute to this case would have a retroactive effect. The court of appeals held that 101(a)(13) should be applied to Mr. Vartelas because, in the court s view, it would not interfere with his settled expectations. Pet. App , 28. St. Cyr, in holding that the repeal of 212(c) could apply only prospectively, had noted that immigrants had often relied on the possibility of discretionary relief under former 212(c) when deciding whether to plead guilty to charges that would preserve the possibility of such relief. Id. at (citing St. Cyr, 533 U.S. at 315, ). Here, however, 101(a)(13)(C)(v) refers to a lawful permanent resident who has committed an offense involving moral turpitude, rather than to one who has been convicted of such an offense. Id. at 25. The court of appeals thus treated Mr. Vartelas s decision to plead guilty as immaterial. Reasoning that lawful permanent residents do not reasonably rely on the immigration laws in deciding whether to commit their offenses, the court held that the reliance interests that had informed this Court s decision in St. Cyr were inapplicable. AR In so holding, the court below rejected Fourth and Ninth Circuit precedents to the contrary. Id. at (declining to follow Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) (W. Fletcher, J.), and Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) (Luttig, J.)). Based on its holding that 101(a)(13)(C)(v) applies to lawful permanent residents guilty of

27 14 pre-iirira offenses, the court held that Mr. Vartelas could not prove under any standard that he was prejudiced by his attorneys failure to dispute retroactivity. Pet. App. 13, 28. Thus, the court denied his petition for review. The court of appeals denied a timely petition for panel rehearing or rehearing en banc. Pet. App SUMMARY OF ARGUMENT Congress did not provide for INA 101(a)(13)(C)(v) to apply retroactively to lawful permanent residents who committed offenses before IIRIRA s effective date. The government cannot bear its heavy burden of overcoming the presumption against retroactivity because IIRIRA does not satisfy either step of the Landgraf retroactivity test. 1. First, the statute contains no clear statement mandating retroactive application, as this Court recognized in St. Cyr. Indeed, the government conceded below the lack of a clear directive on retroactivity. 2. Second, the statute cannot satisfy Landgraf s second step, which asks whether a statute would have a retroactive effect. If applied to lawful permanent residents whose conduct predated IIRIRA, its effect would be retroactive. IIRIRA s change in law would add a new penalty to pre-iirira conduct by giving the government grounds to remove lawful permanent residents. It would disrupt their settled

28 15 expectations that returning from a brief trip would not amount to an entry that would trigger inadmissibility. Applying IIRIRA retroactively would thus attach[ ] new legal consequences to events completed before its enactment. Landgraf, 511 U.S. at 270. IIRIRA s change in the law increases the substantive consequences of pre-iirira conduct; it does not merely adjust prospective relief, jurisdiction, or procedure. It is no answer to say, as the government does, that lawful permanent residents can avoid removal by not traveling abroad. The restrictions that apply to present travel are a new disability imposed because of pre-iirira conduct. Lawful permanent residents cannot avoid this new disability, which all but forbids lawful foreign travel on pain of removal. That disability, as well as the threatened penalty of removal based on pre-iirira conduct, abridges the right to travel abroad. 3. The presumption against retroactivity is based on the general unfairness of imposing new burdens on persons after the fact ; it does not require proof of reliance on the prior state of the law. Landgraf, 511 U.S. at 270. Nevertheless, as this Court recognized in St. Cyr, one can presume that lawful permanent residents in general relied on pre- IIRIRA law, which militates against giving the amendment retroactive effect.

29 16 Here too, applying the amended statute to lawful permanent residents would undermine their reasonable reliance on pre-iirira law in deciding to plead guilty. Before IIRIRA, the Fleuti doctrine protected lawful permanent residents right to make brief trips abroad without risk of being denied reentry upon return. If they had known that their right to travel under Fleuti would later be annulled by Congress on account of their pre-iirira convictions, many lawful permanent residents would instead have chosen to go to trial or negotiated pleas to different charges. Though 101(a)(13)(C)(v) speaks in terms of the commission of an offense, and not the conviction, this distinction is immaterial. The consequences that IIRIRA attaches to the commission of certain offenses come into play only when a lawful permanent resident has been convicted of or admits to such offenses. Thus, the BIA correctly reads the scope of 101(a)(13)(C)(v) as coextensive with 212(a)(2)(A)(i)(I) s requirement of a conviction. Rivens, 25 I. & N. Dec. at In determining whether a lawful permanent resident is seeking an admission under the former subsection or is inadmissible under the latter subsection, the issue is the same: here, whether Mr. Vartelas has been convicted of or has admitted to a crime involving moral turpitude. 4. Finally, if any ambiguities remain, this Court should construe IIRIRA in favor of preserving lawful permanent residents defense to removal. St. Cyr, 533 U.S. at 320. Thus, 101(a)(13)(C)(v) should not apply

30 17 retroactively to lawful permanent residents pre- IIRIRA conduct ARGUMENT [T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Landgraf, 511 U.S. at 265. The laws of Ancient Greece and Rome as well as the Napoleonic Code embraced this precept, and Bracton, Blackstone, Chancellor Kent, and Justice Story affirmed its importance in the common law. Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, (1990) (Scalia, J., concurring) (collecting historical sources); 1 WILLIAM BLACKSTONE, COMMENTARIES *46. As Justice Story stated, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective and impermissible. Soc y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (Story, Circuit Justice, C.C.D.N.H. 1814) (No. 13,156). This principle applies to civil as well as criminal cases as a strong rule of statutory construction. Indeed, Society for the Propagation of the Gospel was a civil case. As this Court recognized two centuries ago, [w]ords in a statute ought not to have a retrospective operation, unless they are so clear, strong,

31 18 and imperative, that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. United States v. Heth, 7 U.S. (3 Cranch) 399, 413 (1806); see also Chew Heong v. United States, 112 U.S. 536, 559 (1884) ( [T]he courts uniformly refuse to give to statutes a retrospective operation.... ) (immigration consequences of international treaty); James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 VA. L. REV. 359, 370, (2010) (both the Framers of the Constitution and the members of Congress who applied its terms in the early [Republic] were strongly committed to norms of prospectivity that rul[ed] out retrospective changes in [immigration] rules ). In Landgraf, this Court distilled the presumption against retroactivity into a two-step test of statutory construction. First, courts ask whether Congress has expressly prescribed the statute s proper reach by express[ly] command[ing] retroactive application. 511 U.S. at 280. Second, if there is no explicit command, courts must decide whether construing the law to apply to an event occurring before its enactment would impair rights a party possessed when he acted, increase a party s liability for past conduct, or impose new duties with respect to transactions already completed. Id. If so, courts must reject that construction as impermissibly retroactive. Congress passed IIRIRA against the backdrop of Landgraf, which had been decided only two years

32 19 earlier. Here, IIRIRA fails both steps of the Landgraf test. I. IIRIRA CONTAINS NO CLEAR STATE- MENT MANDATING RETROACTIVE AP- PLICATION OF INA 101(a)(13)(C)(v) Subsection 101(a)(13)(C)(v) does not mandate its retroactive application to lawful permanent residents whose offenses predate IIRIRA. For a statute to apply retroactively, Congress must express its intent in an unambiguous directive. Landgraf, 551 U.S. at 263. The standard for finding such unambiguous direction is a demanding one, requiring statutory language that was so clear that it could sustain only one interpretation. St. Cyr, 533 U.S. at (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)). Only language of unmistakable clarity will suffice. Id. at 318. No language in 101(a)(13) even hints at, let alone clearly mandates, retroactive application to lawful permanent residents whose offenses predate IIRIRA. In the proceedings below, the government conceded this point and the court of appeals agreed. Pet. App Furthermore, in St. Cyr this Court rejected the government s contention that IIRIRA as a whole clearly directs that all of its provisions should apply retroactively. 533 U.S. at At the time of his pre-iirira guilty plea to a deportable offense, Mr. St. Cyr would have been eligible for discretionary relief

33 20 under INA 212(c). IIRIRA then repealed 212(c) and purportedly eliminated his eligibility. Id. at 293. Applying Landgraf, this Court held that the repeal could not apply retroactively because Congress had not manifested a clear intent and because the repeal attached a new disability on account of his guilty plea. Id. at 315, 321. As this Court noted, Congress had explicitly made more than a dozen other provisions of IIRIRA retroactive (including another subsection of INA 101(a)), indicating that it did not intend the remaining provisions to be retroactive as well. Id. at & n.43; e.g., IIRIRA 321(b) (codified as amended at INA 101(a)(43), 8 U.S.C. 1101(a)(43)) (specifying that IIRIRA s new definition of aggravated felony applies regardless of whether the conviction was entered before, on, or after [September 30, 1996] ). Because 101(a)(13), like the repeal of 212(c), contains no mention of retroactivity, St. Cyr s holding forecloses any such argument here. 3 3 Indeed, IIRIRA s structure reflects Congress s clear intent not to make the provision retroactive. That intent is apparent from the interaction of 101(a)(13)(C)(v) and the pre- and post- IIRIRA discretionary waiver provisions, which makes no sense if the statute is construed to apply retroactively. While 101(a)(13)(C)(v) treats lawful permanent residents who have committed crimes involving moral turpitude as seeking admission, it excepts those who have received discretionary waivers under INA 212(h) (8 U.S.C. 1182(h)) or under a new provision enacted by IIRIRA, INA 240A(a) (8 U.S.C. 1229b(a)). But there is no exception for lawful permanent residents who received discretionary waivers under former INA 212(c), the pre-iirira predecessor to 240A(a) that was at issue in St. Cyr. (Continued on following page)

34 II. 21 IF APPLIED TO OFFENSES OCCURRING BEFORE ITS ENACTMENT, INA 101(a)(13)(C)(v) WOULD HAVE A RET- ROACTIVE EFFECT IIRIRA cannot satisfy Landgraf s second step either, because it attaches new legal consequences to events completed before its enactment. 511 U.S. at 270. Elementary considerations of fairness counsel that new laws should not lightly disrupt[ ] settled expectations. Id. at 265. Yet applying 101(a)(13)(C)(v) to lawful permanent residents like Mr. Vartelas would threaten those settled expectations by imposing new legal consequences: many years after their offenses and guilty pleas, it would abrogate their Fleuti right to return after brief trips abroad or penalize them with removal if they did return. Those substantive changes establish that 101(a)(13)(C)(v), if applied to Mr. Vartelas, would be retroactive. Moreover, persons who have received former 212(c) relief are categorically ineligible for 240A(a) relief. INA 240A(c)(6), 8 U.S.C. 1229b(c)(6). Yet Congress cannot have intended to treat as immigrants seeking an admission all of the lawful permanent residents with past convictions who, before IIRIRA, had received 212(c) relief, even though IIRIRA s definition of seeking an admission makes no exception for them. The only logical explanation for why Congress saw no need to include an exception for them is that IIRIRA eliminated former 212(c) waivers for future offenses, and 101(a)(13)(C)(v) was intended to apply only to post-iirira offenses. Thus, 101(a)(13)(C)(v) makes sense only as a prospective rule.

35 22 A. Applying IIRIRA to Lawful Permanent Residents Like Mr. Vartelas Would Have a Retroactive Effect 1. The principle of non-retroactivity finds expression in several provisions of our Constitution, including the Contracts Clause, the Takings Clause, the Bill of Attainder Clauses, the Due Process Clauses, and the Ex Post Facto Clauses. Landgraf, 511 U.S. at 266; see U.S. Const. art. I, 9, cl. 3; id. art. I, 10, cl. 1; id. amends. V, XIV 1. All of [t]hese [constitutional] provisions demonstrate that retroactive statutes raise particular concerns. Landgraf, 511 U.S. at 266. [T]he presumption against retroactivity applies far beyond the confines of the criminal law. St. Cyr, 533 U.S. at 324. Indeed, though the constitutional prohibition on ex post facto laws applies only to penal statutes, the Court s test for retroactivity of civil statutes is borrowed directly from [its] Ex Post Facto Clause jurisprudence. Collins v. Youngblood, 497 U.S. 37, 41 (1990) (penal limitation); Landgraf, 511 U.S. at 290 (Scalia, J., concurring) (citing Miller v. Florida, 482 U.S. 423, 430 (1987), an Ex Post Facto Clause case, as a source). 4 Thus, when adjudicating claims of civil retroactivity, this Court has repeatedly relied on Ex Post Facto Clause cases. See, e.g., St. 4 One member of this Court has questioned the soundness of this limitation of the ex post facto bar to criminal cases. E. Enters. v. Apfel, 524 U.S. 498, (1998) (Thomas, J., concurring).

36 23 Cyr, 533 U.S. at 325 (applying ex post facto case law to the retroactivity of IIRIRA); Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 948 (1997) (same, for False Claims Act); Landgraf, 511 U.S. at & n.20, 269 n.23, 275 n.28, 282 n.35, 285 n.37 (same, for Civil Rights Act of 1991). Where Congress has not spoken with unmistakable clarity in enacting a civil statute, prospectivity remains the appropriate default rule. Landgraf, 511 U.S. at 272. The overarching presumption that laws, whether criminal or civil, apply only prospectively is critical to protect people s settled expectations. [C]entral to the ex post facto prohibition is a concern for the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Miller, 482 U.S. at 430 (quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)). This same principle finds expression in civil cases, where familiar considerations of fair notice, reasonable reliance, and settled expectations guide retroactivity analysis. Landgraf, 511 U.S. at Here, 101(a)(13)(C)(v) would add a new penalty to the pre-iirira offenses of lawful permanent residents like Mr. Vartelas, by authorizing their removal upon their return from brief trips abroad. If this were a criminal case, the ban on ex post facto laws would categorically forbid such new penalties. As this Court has long recognized, ex post facto laws include [e]very law that changes the

37 24 punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.). A central concern[ ] of the Ex Post Facto Clause is to prevent legislature[s from] increas[ing] punishment beyond what was prescribed when the crime was consummated. Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver, 450 U.S. at 30); accord Miller, 482 U.S. at 430. Although it is not technically a criminal punishment, adding removal to the consequences of past criminal conduct likewise triggers retroactivity concerns. In deportation cases, we do well to eschew technicalities and fictions and to deal instead with realities. Costello v. INS, 376 U.S. 120, 131 (1964). This Court ha[s] long recognized that deportation is a particularly severe penalty. Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893) (Brewer, J., dissenting)); accord Jordan v. De George, 341 U.S. 223, 243 (1951) (Jackson, J., dissenting) ( a savage penalty ). It may cause loss of both property and life, or of all that makes life worth living. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). Because removal operates as a penalty, it cannot apply retroactively absent specific congressional authorization. 3. Whether it is labeled a penalty or not, retroactively authorizing removal attaches new legal consequences to a lawful permanent resident s pre- IIRIRA conduct and disrupts his settled expectations. Landgraf, 511 U.S. at In Landgraf, this Court

38 25 considered whether the broader damages provisions enacted by the Civil Rights Act of 1991 could be applied to workplace discrimination that occurred before the Act s effective date. Id. at Though the stakes were only dollars, not deportation, this Court declined to apply the change retroactively. Id. at 283. Courts must guard against laws that increase [t]he extent of a party s liability, in the civil context as well as the criminal. Id. at (emphasis in original). Even when the conduct in question is morally reprehensible or illegal, a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past. Id. at 282 n.35; see also Hughes Aircraft, 520 U.S. at 948. Likewise, making lawful permanent residents inadmissible upon their return from lawful trips abroad based on pre-iirira conduct clearly attaches a new disability, in respect to transactions or considerations already past. St. Cyr, 533 U.S. at 321 (quoting Landgraf, 511 U.S. at 269, which in turn quoted Society for the Propagation of the Gospel, 22 F. Cas. at 767 (Story, J.)). Until IIRIRA, lawful permanent residents enjoyed the right to take and return from brief trips abroad. If applied retroactively, IIRIRA would abridge that right based on a long-ago, pre-iirira offense. Because Mr. Vartelas took a brief trip to help his elderly parents in Greece, he now faces the equivalent of banishment or exile from the United States, where his wife and children live and

39 26 which he has called home for more than thirty years. Fong Haw Tam v. Phelan, 333 U.S. 6, 10 (1948). 4. The repeal of the Fleuti defense is especially disfavored under both this Court s retroactivity and Ex Post Facto Clause jurisprudence. Under Fleuti, the government could not exclude a lawful permanent resident or detain him as an arriving alien unless it could prove that his trips abroad were not innocent, casual, and brief and so were meaningfully interruptive of [his] permanent residence. 374 U.S. at 462; Plasencia, 459 U.S. at 28-29; see INA 235(b), 8 U.S.C. 1225(b) (1994). Applying 101(a)(13)(C)(v) retroactively would thus prevent lawful permanent residents like Mr. Vartelas from asserting their Fleuti defense in their removal proceedings. Again, if this were a criminal case, the ban on ex post facto laws would flatly forbid abolishing such defenses. A law that abolishes an affirmative defense... contravenes [the Ex Post Facto Clause], because it expands the scope of a criminal prohibition after the act is done. Collins, 497 U.S. at 49. The same principle applies in the civil context as a strong rule of statutory construction. In Hughes Aircraft, the False Claims Act had previously barred qui tam suits filed by private parties based on information already possessed by the government. 520 U.S. at 941. An amendment removed that bar, but this Court held that the amendment could not apply retroactively to conduct completed before it took effect. Id. at The amendment, the Court stressed, eliminates a defense to a qui tam suit. Id. at 948. Even though it

40 27 did not increase the dollar amount of liability, the amendment nonetheless attach[ed] a new disability based on the prior act, by exposing the company to lawsuits brought by more and different parties. Id. (quoting Landgraf, 511 U.S. at 269, which in turn quoted Society for the Propagation of the Gospel, 22 F. Cas. at 767 (Story, J.)). Here, as in Hughes Aircraft, lawful permanent residents must remain able to raise any defense to removal that existed before IIRIRA, when they committed their offenses and pleaded guilty. Before IIRIRA, lawful permanent residents returning to the country could defend against removal by showing that their trips were not meaningfully interruptive of [their] permanent residence. Fleuti, 374 U.S. at 462. Depriving them of that defense would attach a new disability to them based on their pre-iirira offenses. 5 5 Although Mr. Vartelas s Fleuti defense could in theory fail on remand, that possibility does not affect the retroactivity analysis. See St. Cyr, 533 U.S. at 325 ( There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation (citing Hughes Aircraft, 520 U.S. at 949) (emphasis added)). In any event, Mr. Vartelas s trip was innocent: he traveled to Greece to help his elderly parents with their family business. It was casual: no visa or similar paperwork was required for the trip. See Fleuti, 374 U.S. at 462. And it was brief: just one week long. Though the trip in Fleuti itself lasted only a few hours, courts have found trips of weeks or even months to be brief enough. See, e.g., Jubilado v. United States, 819 F.2d 210, 213 (9th Cir. 1987) (three-month trip to bring family to the United (Continued on following page)